Common use of Eligible Independent Contractor Clause in Contracts

Eligible Independent Contractor. (a) At the effective time of this Agreement, Operator shall qualify as an “eligible independent contractor” as defined in Section 856(d)(9) of the Internal Revenue Code of 1986, as amended (the “Code”). To that end: (i) during the Operating Term, Operator shall not permit wagering activities to be conducted at or in connection with the Hotels; (ii) during the Operating Term, Operator shall not own, directly or indirectly (within the meaning of Section 856(d)(5) of the Code), more than 35% of the shares of Condor Hospitality Trust, Inc.; (iii) during the Operating Term, no more than 35% of the total combined voting power of Operator’s outstanding stock (or 35% of the total shares of all classes of its outstanding stock) shall be owned, directly or indirectly, by one or more persons owning 35% or more of the outstanding stock of Condor Hospitality Trust, Inc.; and (iv) At the effective time, Operator shall be actively engaged in the trade or business of operating “qualified lodging facilities” (defined below) for a person who is not a “related person” within the meaning of Section 856(d)(9)(F) of the Code with respect to the Parent or Lessee (“Unrelated Persons”). In order to meet this requirement, Operator agrees that it (i) shall derive at least 10% of both its revenue and profit from operating “qualified lodging facilities” for Unrelated Persons and (ii) shall comply with any regulations or other administrative guidance under Section 856(d)(9) of the Code with respect to the amount of hotel management business with Unrelated Persons that is necessary to qualify as an “eligible independent contractor” with the meaning of such Code Section. (b) A “qualified lodging facility” is defined in Section 856(d)(9)(D) of the Code and means a “lodging facility” (defined below), unless wagering activities are conducted at or in connection with such facility by any person who is engaged in the business of accepting xxxxxx and who is legally authorized to engage in such business at or in connection with such facility. A “lodging facility” is a hotel, motel or other establishment more than one-half of the dwelling units in which are used on a transient basis, and includes customary amenities and facilities operated as part of, or associated with, the lodging facility so long as such amenities and facilities are customary for other properties of a comparable size and class owned by other owners unrelated to Condor Hospitality Trust, Inc. (c) Operator shall not sublet any Hotel or enter into any similar arrangement on any basis such that the rental or other amounts to be paid by the sublessee thereunder would be based, in whole or in part, on either (a) the net income or profits derived by the business activities of the sublessee, or (b) any other formula such that any portion of the rent would fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Internal Revenue Code, or any similar or successor provision thereto.

Eligible Independent Contractor. (a) At During the effective time Term of this Agreement, Operator Manager shall at all times qualify as an “eligible independent contractor” as defined in (an “Eligible Independent Contractor”) within the meaning of Section 856(d)(9) of the Internal Revenue Code of 1986, as amended (the “Code”). To that end, Manager covenants that, during the Term of this Agreement: (ia) during the Operating Term, Operator Manager shall not conduct or permit wagering activities to be conducted at or in connection with any of the Hotels; (iib) during the Operating Term, Operator Manager shall not own, directly or indirectly own (within the meaning of Section 856(d)(5) of the Code), ) more than 35% twenty-five percent (25%) of the shares outstanding stock of Condor Hospitality TrustCapital Lodging, Inc.a Maryland real estate investment trust (“Capital Lodging”); (iiic) during the Operating Term, no more than thirty-five percent (35% %) of either (i) the total combined voting power in Manager (determined by reference to interests in the capital stock of Operator’s outstanding stock Manager) or (or 35% of ii) the total shares of all classes of its outstanding stock) capital stock of Manager shall be owned, directly or indirectly, owned (within the meaning of Section 856(d)(5) of the Code) by one or more persons owning (within the meaning of Section 856(d)(5) of the Code) in the aggregate thirty-five percent (35% %) or more of the outstanding stock of Condor Hospitality Trust, Inc.; andCapital Lodging; (ivd) At Manager (or a person who is a “related person,” within the effective timemeaning of Section 856(d)(9)(F) of the Code (a “Related Person”), Operator with respect to Manager) shall be actively engaged in the trade or business of operating “qualified lodging facilitiesQualified Lodging Facilities,” (as defined below) , for a person one or more persons who is are not a “related person” within the meaning of Section 856(d)(9)(F) of the Code Related Persons with respect to the Parent Capital Lodging or Lessee Owner (“Unrelated Persons”). In order to meet For purposes of determining whether the requirements of this requirementSection 23.09(d) have been met, Operator agrees that it Manager shall be treated as being actively engaged in such a trade or business if Manager (i) shall derive derives at least ten percent (10% %) of both its revenue profits and profit revenues from operating “qualified lodging facilities” Qualified Lodging Facilities for Unrelated Persons and Persons, or (ii) shall comply complies with any regulations or other administrative guidance under Section 856(d)(9) of the Code with respect to the amount of hotel management business with Unrelated Persons that is necessary for Manager to qualify as an “eligible independent contractor” with the meaning of such Code SectionEligible Independent Contractor. (be) A For purposes of this Section 23.09, a “qualified lodging facilityQualified Lodging Facility” is defined in Section 856(d)(9)(D) of the Code and means a “lodging facility” (Lodging Facility, as defined below), unless wagering activities are conducted at or in connection with such facility by any person who is engaged in the business of accepting xxxxxx and who is legally fully authorized to engage in such business activities at or in connection with such facility. A “lodging facilityLodging Facility” is a hotel, motel motel, or other establishment more than one-half of the dwelling units in which are used on a transient basis, and includes customary amenities and facilities operated as part of, or associated with, the lodging facility so long as such amenities and facilities are customary for other properties of a comparable size and class owned by other owners unrelated to Condor Hospitality Trust, Inc. (c) Operator shall not sublet any Hotel or enter into any similar arrangement on any basis such that the rental or other amounts to be paid by the sublessee thereunder would be based, in whole or in part, on either (a) the net income or profits derived by the business activities of the sublessee, or (b) any other formula such that any portion of the rent would fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Internal Revenue Code, or any similar or successor provision theretowho are Unrelated Persons.

Eligible Independent Contractor. (a) At the effective time of this Agreement, Operator shall qualify as an “eligible independent contractor” as defined in Section 856(d)(9) of the Internal Revenue Code of 1986, as amended (the “Code”). To that end: (i) during the Operating Term, Operator shall not permit wagering activities to be conducted at or in connection with the Hotels; (ii) during the Operating Term, Operator shall not own, directly or indirectly (within the meaning of Section 856(d)(5) of the Code), more than 35% of the shares of Condor Hospitality TrustSupertel Hospitality, Inc.; (iii) during the Operating Term, no more than 35% of the total combined voting power of Operator’s outstanding stock (or 35% of the total shares of all classes of its outstanding stock) shall be owned, directly or indirectly, by one or more persons owning 35% or more of the outstanding stock of Condor Hospitality TrustSupertel Hospitality, Inc.; and (iv) At the effective time, Operator shall be actively engaged in the trade or business of operating “qualified lodging facilities” (defined below) for a person who is not a “related person” within the meaning of Section 856(d)(9)(F) of the Code with respect to the Parent or Lessee (“Unrelated Persons”). In order to meet this requirement, Operator agrees that it (i) shall derive at least 10% of both its revenue and profit from operating “qualified lodging facilities” for Unrelated Persons and (ii) shall comply with any regulations or other administrative guidance under Section 856(d)(9) of the Code with respect to the amount of hotel management business with Unrelated Persons that is necessary to qualify as an “eligible independent contractor” with the meaning of such Code Section. (b) A “qualified lodging facility” is defined in Section 856(d)(9)(D) of the Code and means a “lodging facility” (defined below), unless wagering activities are conducted at or in connection with such facility by any person who is engaged in the business of accepting xxxxxx and who is legally authorized to engage in such business at or in connection with such facility. A “lodging facility” is a hotel, motel or other establishment more than one-half of the dwelling units in which are used on a transient basis, and includes customary amenities and facilities operated as part of, or associated with, the lodging facility so long as such amenities and facilities are customary for other properties of a comparable size and class owned by other owners unrelated to Condor Hospitality TrustSupertel Hospitality, Inc. (c) Operator shall not sublet any Hotel or enter into any similar arrangement on any basis such that the rental or other amounts to be paid by the sublessee thereunder would be based, in whole or in part, on either (a) the net income or profits derived by the business activities of the sublessee, or (b) any other formula such that any portion of the rent would fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Internal Revenue Code, or any similar or successor provision thereto.

Eligible Independent Contractor. (a) At the effective time of this Agreement, Operator shall qualify as an “eligible independent contractor” as defined in Section 856(d)(9) of the Internal Revenue Code of 1986, as amended (the “Code”). To that end: (i) during the Operating Term, Operator shall not permit wagering activities to be conducted at or in connection with the Hotels; (ii) during the Operating Term, Operator shall not own, directly or indirectly (within the meaning of Section 856(d)(5) of the Code), more than 35% of the shares of Condor Hospitality TrustSupertel Hospitality, Inc.; (iii) during the Operating Term, no more than 35% of the total combined voting power of Operator’s outstanding stock (or 35% of the total shares of all classes of its outstanding stock) shall be owned, directly or indirectly, by one or more persons owning 35% or more of the outstanding stock of Condor Hospitality TrustSupertel Hospitality, Inc.; and (iv) At the effective time, Operator shall be actively engaged in the trade or business of operating “qualified lodging facilities” (defined below) for a person who is not a “related person” within the meaning of Section 856(d)(9)(F) of the Code with respect to the Parent or Lessee (“Unrelated Persons”). In order to meet this requirement, Operator agrees that it (i) shall derive at least 10% of both its revenue and profit from operating “qualified lodging facilities” for Unrelated Persons and (ii) shall comply with any regulations or other administrative guidance under Section 856(d)(9) of the Code with respect to the amount of hotel management business with Unrelated Persons that is necessary to qualify as an “eligible independent contractor” with the meaning of such Code Section. (b) A “qualified lodging facility” is defined in Section 856(d)(9)(D) of the Code and means a “lodging facility” (defined below), unless wagering activities are conducted at or in connection with such facility by any person who is engaged in the business of accepting xxxxxx and wagxxx xxd who is legally authorized to engage in such business at or in connection with such facility. A “lodging facility” is a hotel, motel or other establishment more than one-half of the dwelling units in which are used on a transient basis, and includes customary amenities and facilities operated as part of, or associated with, the lodging facility so long as such amenities and facilities are customary for other properties of a comparable size and class owned by other owners unrelated to Condor Hospitality TrustSupertel Hospitality, Inc. (c) Operator shall not sublet any Hotel or enter into any similar arrangement on any basis such that the rental or other amounts to be paid by the sublessee thereunder would be based, in whole or in part, on either (a) the net income or profits derived by the business activities of the sublessee, or (b) any other formula such that any portion of the rent would fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Internal Revenue Code, or any similar or successor provision thereto.

Eligible Independent Contractor. (a) At During the effective time Term of this Agreement, Operator Manager shall at all times qualify as an “eligible independent contractor” as defined in Section 856(d)(9) of the Internal Revenue Code of 1986, as amended (the “CodeEligible Independent Contractor”). To that end, during the Term of this Agreement, Manager agrees that: (ia) during the Operating Term, Operator Manager shall not permit conduct wagering activities to be conducted at or in connection with any of the Hotels; (iib) during the Operating Term, Operator Manager shall not own, directly or indirectly (within the meaning of Section 856(d)(5) of the Code), more than thirty-five percent (35% %) of the shares outstanding stock of Condor Hospitality Trust, Inc.AHP; (iiic) during the Operating Term, no more than thirty-five percent (35% %) of the total combined voting power of OperatorManager’s outstanding stock partnership interest (in its assets or 35% of the total shares of all classes of its outstanding stocknet profits) shall be ownedowned (within the meaning of Section 856(d)(5) of the Code), directly or indirectly, by one or more persons owning thirty-five percent (35% %) (within the meaning of Section 856(d)(5) of the Code) or more of the outstanding stock of Condor Hospitality TrustAHP; (d) neither AHP, Inc.the Partnership, the Landlords, nor the Lessee, shall derive any income from the Manager or any of its subsidiaries; and (ive) At Manager (or a person who is a “related person” within the effective time, Operator meaning of Section 856(d)(9)(F) of the Code (a “Related Person”) with respect to Manager) shall be actively engaged in the trade or business of operating “qualified lodging facilities” within the meaning of Section 856(d)(9)(D) of the Code (defined below) for a person one or more persons who is are not a “related person” within the meaning of Section 856(d)(9)(F) of the Code Related Persons with respect to the Parent AHP or Lessee (“Unrelated Persons”). In order to meet For purposes of determining whether the requirement of this requirementparagraph (e) has been met, Operator agrees that it Manager shall be treated as being “actively engaged” in such a trade or business if Manager (i) shall derive derives at least 10% of both its profits and revenue and profit from operating “qualified lodging facilities” within the meaning of Section 856(d)(9)(D) of the Code for Unrelated Persons and or (ii) shall comply complies with any regulations or other administrative guidance under Section 856(d)(9) of the Code that provide a “safe harbor” rule with respect to the amount of hotel management business with Unrelated Persons that is necessary to qualify as an “eligible independent contractor” with within the meaning of such Code Sectionsection. (b) A “qualified lodging facility” is defined in Section 856(d)(9)(D) of the Code and means a “lodging facility” (defined below), unless wagering activities are conducted at or in connection with such facility by any person who is engaged in the business of accepting xxxxxx and who is legally authorized to engage in such business at or in connection with such facility. A “lodging facility” is a hotel, motel or other establishment more than one-half of the dwelling units in which are used on a transient basis, and includes customary amenities and facilities operated as part of, or associated with, the lodging facility so long as such amenities and facilities are customary for other properties of a comparable size and class owned by other owners unrelated to Condor Hospitality Trust, Inc. (c) Operator shall not sublet any Hotel or enter into any similar arrangement on any basis such that the rental or other amounts to be paid by the sublessee thereunder would be based, in whole or in part, on either (a) the net income or profits derived by the business activities of the sublessee, or (b) any other formula such that any portion of the rent would fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Internal Revenue Code, or any similar or successor provision thereto.

Eligible Independent Contractor. (a) At During the effective time Term of this Agreement, Operator Manager shall at all times qualify as an “eligible independent contractor” as defined in Section 856(d)(9) of the Internal Revenue Code of 1986, as amended (the “CodeEligible Independent Contractor”). To that end, during the Term of this Agreement, Manager agrees that: (ia) during the Operating Term, Operator Manager shall not permit conduct wagering activities to be conducted at or in connection with any of the Hotels; (iib) during the Operating Term, Operator Manager shall not own, directly or indirectly (within the meaning of Section 856(d)(5) of the Code), more than thirty-five percent (35% %) of the shares outstanding stock of Condor Hospitality Trust, Inc.AHT; (iiic) during the Operating Term, no more than thirty-five percent (35% %) of the total combined voting power of OperatorManager’s outstanding stock partnership interest (in its assets or 35% of the total shares of all classes of its outstanding stocknet profits) shall be ownedowned (within the meaning of Section 856(d)(5) of the Code), directly or indirectly, by one or more persons owning thirty-five percent (35% %) (within the meaning of Section 856(d)(5) of the Code) or more of the outstanding stock of Condor Hospitality TrustAHT; (d) neither AHT, Inc.the Partnership, the Landlords, nor the Lessee, shall derive any income from the Manager or any of its subsidiaries; and (ive) At Manager (or a person who is a “related person” within the effective time, Operator meaning of Section 856(d)(9)(F) of the Code (a “Related Person”) with respect to Manager) shall be actively engaged in the trade or business of operating “qualified lodging facilities” within the meaning of Section 856(d)(9)(D) of the Code (defined below) for a person one or more persons who is are not a “related person” within the meaning of Section 856(d)(9)(F) of the Code Related Persons with respect to the Parent AHT or Lessee (“Unrelated Persons”). In order to meet For purposes of determining whether the requirement of this requirementparagraph (e) has been met, Operator agrees that it Manager shall be treated as being “actively engaged” in such a trade or business if Manager (i) shall derive derives at least 10% of both its profits and revenue and profit from operating “qualified lodging facilities” within the meaning of Section 856(d)(9)(D) of the Code for Unrelated Persons and or (ii) shall comply complies with any regulations or other administrative guidance under Section 856(d)(9) of the Code that provide a “safe harbor” rule with respect to the amount of hotel management business with Unrelated Persons that is necessary to qualify as an “eligible independent contractor” with within the meaning of such Code Sectionsection. (b) A “qualified lodging facility” is defined in Section 856(d)(9)(D) of the Code and means a “lodging facility” (defined below), unless wagering activities are conducted at or in connection with such facility by any person who is engaged in the business of accepting xxxxxx and who is legally authorized to engage in such business at or in connection with such facility. A “lodging facility” is a hotel, motel or other establishment more than one-half of the dwelling units in which are used on a transient basis, and includes customary amenities and facilities operated as part of, or associated with, the lodging facility so long as such amenities and facilities are customary for other properties of a comparable size and class owned by other owners unrelated to Condor Hospitality Trust, Inc. (c) Operator shall not sublet any Hotel or enter into any similar arrangement on any basis such that the rental or other amounts to be paid by the sublessee thereunder would be based, in whole or in part, on either (a) the net income or profits derived by the business activities of the sublessee, or (b) any other formula such that any portion of the rent would fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Internal Revenue Code, or any similar or successor provision thereto.

Eligible Independent Contractor. (a) At the effective time of this Agreement, Operator Agent shall qualify as an “"eligible independent contractor” " as defined in Section 856(d)(9) of the Internal Revenue Code of 1986, as amended (the “"Code”"). To that end: (i) during the Operating Termterm of this Agreement, Operator Agent shall not permit wagering activities to be conducted at or in connection with the Hotels; (ii) during the Operating Termterm of this Agreement, Operator Agent shall not own, directly or indirectly (within the meaning of Section 856(d)(5) of the Code), more than 35% of the shares of Condor Supertel Hospitality Trust, Inc.Inc. (“Parent”); (iii) during the Operating Termterm of this Agreement, no more than 35% of the total combined voting power of Operator’s Agent's outstanding stock (or 35% of the total shares of all classes of its outstanding stock) shall be owned, directly or indirectly, by one or more persons owning 35% or more of the outstanding stock of Condor Hospitality Trust, Inc.Parent; and (iv) At the effective time, Operator Agent shall be actively engaged in the trade or business of operating “"qualified lodging facilities” " (defined below) for a person who is not a “"related person” " within the meaning of Section 856(d)(9)(F) of the Code with respect to the Parent or Lessee Owner (“"Unrelated Persons”"). In order to meet this requirement, Operator Agent agrees that it (i) shall derive at least 10% of both its revenue and profit from operating “"qualified lodging facilities” " for Unrelated Persons and (ii) shall comply with any regulations or other administrative guidance under Section 856(d)(9) of the Code with respect to the amount of hotel management business with Unrelated Persons that is necessary to qualify as an “"eligible independent contractor” " with the meaning of such Code Section. (b) A “"qualified lodging facility” " is defined in Section 856(d)(9)(D) of the Code and means a “"lodging facility” " (defined below), unless wagering activities are conducted at or in connection with such facility by any person who is engaged in the business of accepting xxxxxx and who is legally authorized to engage in such business at or in connection with such facility. A “"lodging facility” " is a hotel, motel or other establishment more than one-half of the dwelling units in which are used on a transient basis, and includes customary amenities and facilities operated as part of, or associated with, the lodging facility so long as such amenities and facilities are customary for other properties of a comparable size and class owned by other owners unrelated to Condor Hospitality Trust, Inc.Parent. (c) Operator Agent shall not sublet any Hotel or enter into any similar arrangement on any basis such that the rental or other amounts to be paid by the sublessee thereunder would be based, in whole or in part, on either (a) the net income or profits derived by the business activities of the sublessee, or (b) any other formula such that any portion of the rent would fail to qualify as “"rents from real property” " within the meaning of Section 856(d) of the Internal Revenue Code, or any similar or successor provision thereto.

Eligible Independent Contractor. (a) At During the effective time Term of this Agreement, Operator Manager shall at all times qualify as an “eligible independent contractor” as defined in Section 856(d)(9) of the Internal Revenue Code of 1986, as amended (the “CodeEligible Independent Contractor”). To that end, during the Term of this Agreement, Manager agrees that: (ia) during the Operating Term, Operator Manager shall not permit wagering activities to be conducted at or in connection with the Hotels; (ii) during the Operating Term, Operator shall not own, directly or indirectly (within the meaning of Section 856(d)(5) of the Code), more than 35% of the shares of Condor Hospitality Trust, Inc.; (iii) during the Operating Term, no more than 35% of the total combined voting power of Operator’s outstanding stock (or 35% of the total shares of all classes of its outstanding stock) shall be owned, directly or indirectly, by one or more persons owning 35% or more of the outstanding stock of Condor Hospitality Trust, Inc.; and (iv) At the effective time, Operator shall be actively engaged in the trade or business of operating “qualified lodging facilities” (defined below) for a person who is not a “related person” within the meaning of Section 856(d)(9)(F) of the Code with respect to the Parent or Lessee (“Unrelated Persons”). In order to meet this requirement, Operator agrees that it (i) shall derive at least 10% of both its revenue and profit from operating “qualified lodging facilities” for Unrelated Persons and (ii) shall comply with any regulations or other administrative guidance under Section 856(d)(9) of the Code with respect to the amount of hotel management business with Unrelated Persons that is necessary to qualify as an “eligible independent contractor” with the meaning of such Code Section. (b) A “qualified lodging facility” is defined in Section 856(d)(9)(D) of the Code and means a “lodging facility” (defined below), unless wagering activities are conducted at or in connection with such facility Hotels by any person who is engaged in the business of accepting xxxxxx and who is legally authorized to engage in such business at or in connection with such facility. A “lodging facility” is a hotelthe Hotels; (b) Manager shall not own, motel directly or other establishment indirectly (within the meaning of Section 856(d)(5) of the Code), more than onethirty-half five percent (35%) of the dwelling units in which are used on a transient basis, and includes customary amenities and facilities operated as part of, or associated with, the lodging facility so long as such amenities and facilities are customary for other properties outstanding stock of a comparable size and class owned by other owners unrelated to Condor Hospitality Trust, Inc.MHI; (c) Operator shall not sublet any Hotel or enter into any similar arrangement on any basis such that the rental or other amounts to be paid by the sublessee thereunder would be based, in whole or in part, on either no more than thirty-five percent (a35%) the net income or profits derived by the business activities of the sublessee, Manager’s membership interests (in its assets or net profits) shall be owned (bwithin the meaning of Section 856(d)(5) any other formula such that any portion of the rent would fail to qualify as Code), directly or indirectly, by one or more persons owning thirty-five percent (35%) (within the meaning of Section 856(d)(5) of the Code) or more of the outstanding stock of MHI; (d) neither MHI, the Partnership, the Landlords, nor the Lessee, shall derive any income from the Manager or any of its subsidiaries; and (e) Manager (or a person who is a “rents from real propertyrelated person” within the meaning of Section 856(d856(d)(9)(F) of the Internal Revenue CodeCode (a “Related Person”) with respect to Manager) shall be actively engaged in the trade or business of operating “qualified lodging facilities” within the meaning of Section 856(d)(9)(D) of the Code (defined below) for one or more persons who are not Related Persons with respect to MHI or Lessee (“Unrelated Persons”). For purposes of determining whether the requirement of this paragraph (e) has been met, Manager shall be treated as being “actively engaged” in such a trade or business if Manager (i) derives at least 10% of both its profits and revenue from operating “qualified lodging facilities” within the meaning of Section 856(d)(9)(D) of the Code for Unrelated Persons or (ii) complies with any similar regulations or successor provision theretoother administrative guidance under Section 856(d)(9) of the Code that provide a “safe harbor” rule with respect to the hotel management business with Unrelated Persons that is necessary to qualify as an “eligible independent contractor” within the meaning of such Code section.

Eligible Independent Contractor. (a) At the effective time of this Agreement, Operator shall qualify as an “"eligible independent contractor” " as defined in Section 856(d)(9) of the Internal Revenue Code of 1986, as amended (the “"Code”"). To that end: (i) during the Operating Term, Operator shall not permit wagering activities to be conducted at or in connection with the Hotels; (ii) during the Operating Term, Operator shall not own, directly or indirectly (within the meaning of Section 856(d)(5) of the Code), more than 35% of the shares of Condor Xxxxxxxx Hospitality Trust, Inc.; (iii) during the Operating Term, no more than 35% of the total combined voting power of Operator’s 's outstanding stock (or 35% of the total shares of all classes of its outstanding stock) shall be owned, directly or indirectly, by one or more persons owning 35% or more of the outstanding stock of Condor Xxxxxxxx Hospitality Trust, Inc.; and (iv) At the effective time, Operator shall be actively engaged in the trade or business of operating “"qualified lodging facilities” " (defined below) for a person who is not a “"related person” " within the meaning of Section 856(d)(9)(F) of the Code with respect to the Parent Xxxxxxxx Hospitality Trust, Inc. or Lessee (“"Unrelated Persons”"). In order to meet this requirement, Operator agrees that it (i) shall derive at least 10% of both its revenue and profit from operating “"qualified lodging facilities” " for Unrelated Persons and (ii) shall comply with any regulations or other administrative guidance under Section 856(d)(9) of the Code with respect to the amount of hotel management business with Unrelated Persons that is necessary to qualify as an “"eligible independent contractor” " with the meaning of such Code Section. (b) A “qualified lodging facility” is defined in Section 856(d)(9)(D) of the Code and means a “lodging facility” (defined below), unless wagering activities are conducted at or in connection with such facility by any person who is engaged in the business of accepting xxxxxx and who is legally authorized to engage in such business at or in connection with such facility. A “lodging facility” is a hotel, motel or other establishment more than one-half of the dwelling units in which are used on a transient basis, and includes customary amenities and facilities operated as part of, or associated with, the lodging facility so long as such amenities and facilities are customary for other properties of a comparable size and class owned by other owners unrelated to Condor Hospitality Trust, Inc. (c) Operator shall not sublet any Hotel or enter into any similar arrangement on any basis such that the rental or other amounts to be paid by the sublessee thereunder would be based, in whole or in part, on either (a) the net income or profits derived by the business activities of the sublessee, or (b) any other formula such that any portion of the rent would fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Internal Revenue Code, or any similar or successor provision thereto.

Eligible Independent Contractor. (a) At During the effective time Term of this Agreement, Operator Manager shall at all times qualify as an “eligible independent contractor” as defined in (an “Eligible Independent Contractor”) within the meaning of Section 856(d)(9) of the Internal Revenue Code of 1986, as amended (the “Code”). To that end, Manager covenants that, during the Term of this Agreement: (ia) during the Operating Term, Operator Manager shall not conduct or permit wagering activities to be conducted at or in connection with any of the Hotels; (iib) during the Operating Term, Operator Manager shall not own, directly or indirectly own (within the meaning of Section 856(d)(5) of the Code), ) more than 35% thirty percent (30%) of the shares outstanding stock of Condor Hospitality Trust, Inc.Newco; (iiic) during the Operating Term, no No more than 35% thirty percent (30%) of the total combined voting power partnership interests in Manager (determined by reference to interests in either the capital or net profits of Operator’s outstanding stock (or 35% of the total shares of all classes of its outstanding stockManager) shall be owned, directly or indirectly, by one or more persons owning 35% owned (within the meaning of Section 856(d)(5) of the Code) in the aggregate thirty percent (30%) or more of the outstanding stock of Condor Hospitality Trust, Inc.; andNewco; (ivd) At Manager (or a person who is a “related person,” within the effective timemeaning of Section 856(d)(9)(F) of the Code (a “Related Person”), Operator with respect to Manager) shall be actively engaged in the trade or business of operating “qualified lodging facilitiesQualified Lodging Facilities,” (as defined below) , for a person one or more persons who is are not a “related person” within the meaning of Section 856(d)(9)(F) of the Code Related Persons with respect to the Parent Newco or Lessee (“Unrelated Persons”). In order to meet For purposes of determining whether the requirements of this requirementSection 19.20(d) have been met, Operator agrees that it Manager shall be treated as being actively engaged in such a trade or business if Manager (i) shall derive derives at least ten percent (10% %) of both its revenue profits and profit revenues from operating “qualified lodging facilities” Qualified Lodging Facilities for Unrelated Persons and Persons, or (ii) shall comply complies with any regulations or other administrative guidance under Section 856(d)(9845(d)(9) of the Code with respect to the amount of hotel management business with Unrelated Persons that is necessary for Manager to qualify as an “eligible independent contractor” with the meaning of such Code Section.Eligible Independent Contractor; (be) A For purposes of this Section 19.20, a “qualified lodging facilityQualified Lodging Facility” is defined in Section 856(d)(9)(D) of the Code and means a “lodging facility” (Lodging Facility, as defined below), unless wagering activities are conducted at or in connection with such facility by any person who is engaged in the business of accepting xxxxxx and who is legally fully authorized to engage in such business activities at or in connection with such facility. A “lodging facilityLodging Facility” is a hotel, motel or other establishment more than one-half of the dwelling units in which are used on a transient basis, and includes customary amenities and facilities operated as part of, or associated with, the lodging facility so long as such amenities and facilities are customary for other properties of a comparable size and class owned by other owners unrelated to Condor Hospitality Trust, Inc. (c) Operator shall not sublet any Hotel or enter into any similar arrangement on any basis such that the rental or other amounts to be paid by the sublessee thereunder would be based, in whole or in part, on either (a) the net income or profits derived by the business activities of the sublessee, or (b) any other formula such that any portion of the rent would fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Internal Revenue Code, or any similar or successor provision theretowho are Unrelated Persons.

Eligible Independent Contractor. (a) At the effective time of this Agreement, Operator shall qualify as an “"eligible independent contractor” " as defined in Section 856(d)(9) of the Internal Revenue Code of 1986, as amended (the “"Code”"). To that end: (i) during the Operating Term, Operator shall not permit wagering activities to be conducted at or in connection with the HotelsHotel; (ii) during the Operating Term, Operator shall not own, directly or indirectly (within the meaning of Section 856(d)(5) of the Code), more than 35% of the shares of Condor Hospitality Trust, Inc.; (iii) during the Operating Term, no more than 35% of the total combined voting power of Operator’s 's outstanding stock (or 35% of the total shares of all classes of its outstanding stock) shall be owned, directly or indirectly, by one or more persons owning 35% or more of the outstanding stock of Condor Hospitality Trust, Inc.; and (iv) At the effective time, Operator shall be actively engaged in the trade or business of operating “"qualified lodging facilities” " (defined below) for a person who is not a “"related person” " within the meaning of Section 856(d)(9)(F) of the Code with respect to the Parent or Lessee (“"Unrelated Persons”"). In order to meet this requirement, Operator agrees that it (i) shall derive at least 10% of both its revenue and profit from operating “"qualified lodging facilities” " for Unrelated Persons and (ii) shall comply with any regulations or other administrative guidance under Section 856(d)(9) of the Code with respect to the amount of hotel management business with Unrelated Persons that is necessary to qualify as an “"eligible independent contractor” " with the meaning of such Code Section. (b) A “"qualified lodging facility” " is defined in Section 856(d)(9)(D) of the Code and means a “"lodging facility” " (defined below), unless wagering activities are conducted at or in connection with such facility by any person who is engaged in the business of accepting xxxxxx and who is legally authorized to engage in such business at or in connection with such facility. A “"lodging facility” " is a hotel, motel or other establishment more than one-half of the dwelling units in which are used on a transient basis, and includes customary amenities and facilities operated as part of, or associated with, the lodging facility so long as such amenities and facilities are customary for other properties of a comparable size and class owned by other owners unrelated to Condor Hospitality Trust, Inc. (c) Operator shall not sublet any the Hotel or enter into any similar arrangement on any basis such that the rental or other amounts to be paid by the sublessee thereunder would be based, in whole or in part, on either (a) the net income or profits derived by the business activities of the sublessee, or (b) any other formula such that any portion of the rent would fail to qualify as “"rents from real property” " within the meaning of Section 856(d) of the Internal Revenue Code, or any similar or successor provision thereto.

Eligible Independent Contractor. (a) At During the effective time Term of this Agreement, Operator Manager shall at all times qualify as an “eligible independent contractor” as defined in (an “Eligible Independent Contractor”) within the meaning of Section 856(d)(9) of the Internal Revenue Code of 1986, as amended (the “Code”). To that end, Manager covenants that, during the Term of this Agreement: (ia) during the Operating Term, Operator Manager shall not conduct or permit wagering activities to be conducted activities, as described in Section 856(d)(9)(D)(i) of the Code, at or in connection with the HotelsHotel; (iib) during the Operating Term, Operator Manager shall not own, directly or indirectly own (within the meaning of Section 856(d)(5) of the Code) more than twenty-five percent (25%) of the outstanding stock of Capital Lodging, a Maryland real estate investment trust (“Capital Lodging”), more than 35% provided, however, that Manager shall not be in violation of this Section 13.23(b) if such ownership restriction is breached solely as a result of the shares ownership of Condor Hospitality TrustCapital Lodging stock by AP/APH Ventures, Inc.LLC or any of its Affiliates; (iiic) during the Operating Term, no No more than thirty-five percent (35% %) of either (i) the total combined voting power in Manager (determined by reference to interests in the capital stock of Operator’s outstanding stock Manager) or (or 35% of ii) the total shares of all classes of its outstanding stock) capital stock of Manager shall be owned, directly or indirectly, owned (within the meaning of Section 856(d)(5) of the Code) by one or more persons owning (within the meaning of Section 856(d)(5) of the Code) in the aggregate thirty-five percent (35% %) or more of the outstanding stock of Condor Hospitality Trust, Inc.; andCapital Lodging; (ivd) At Manager (or a person who is a “related person,” within the effective timemeaning of Section 856(d)(9)(F) of the Code (a “Related Person”), Operator with respect to Manager) shall be actively engaged in the trade or business of operating “qualified lodging facilitiesQualified Lodging Facilities,” (as defined below) , for a person one or more persons who is are not a “related person” within the meaning of Section 856(d)(9)(F) of the Code Related Persons with respect to the Parent Capital Lodging or Lessee Owner (“Unrelated Persons”). In order to meet For purposes of determining whether the requirements of this requirementSection 13.23(d) have been met, Operator agrees that it Manager shall be treated as being actively engaged in such a trade or business if Manager (i) shall derive derives at least ten percent (10% %) of both its revenue profits and profit revenues from operating “qualified lodging facilities” Qualified Lodging Facilities for Unrelated Persons and Persons, or (ii) shall comply complies with any regulations or other administrative guidance under Section 856(d)(9) of the Code with respect to the amount of hotel management business with Unrelated Persons that is necessary for Manager to qualify as an “eligible independent contractor” with the meaning of such Code SectionEligible Independent Contractor. (be) A For purposes of this Section 13.23, a “qualified lodging facilityQualified Lodging Facility” is defined in Section 856(d)(9)(D) of the Code and means a “lodging facility” (Lodging Facility, as defined below), unless wagering activities are conducted at or in connection with such facility by any person who is engaged in the business of accepting xxxxxx and who is legally fully authorized to engage in such business activities at or in connection with such facility. A “lodging facilityLodging Facility” is a hotel, motel motel, or other establishment more than one-half of the dwelling units in which are used on a transient basis, and includes customary amenities and facilities operated as part of, or associated with, the lodging facility so long as such amenities and facilities are customary for other properties of a comparable size and class owned by other owners unrelated who are Unrelated Persons. In the event of any breach of Section 13.23(c) above, Owner’s sole remedy shall be to Condor Hospitality Trust, Inc. terminate this Agreement in accordance with the provisions of Section 12.4 hereof (c) Operator which shall not sublet any Hotel or enter into any similar arrangement on any basis such that include the rental or other amounts payment to be paid by the sublessee thereunder would be based, in whole or in part, on either (a) the net income or profits derived by the business activities Manager of the sublessee, or (b) any other formula such that any portion of the rent would fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Internal Revenue Code, or any similar or successor provision theretoapplicable Termination Fee).

Eligible Independent Contractor. (a) At the effective time of this Agreement, Operator shall qualify as an “eligible independent contractor” as defined in Section 856(d)(9) of the Internal Revenue Code of 1986, as amended (the “Code”). To that end: (i) during the Operating Term, Operator shall not permit wagering activities to be conducted at or in connection with the Hotels; (ii) during the Operating Term, Operator shall not own, directly or indirectly (within the meaning of Section 856(d)(5) of the Code), more than 35% of the shares of Condor Xxxxxxxx Hospitality Trust, Inc.; (iii) during the Operating Term, no more than 35% of the total combined voting power of Operator’s outstanding stock (or 35% of the total shares of all classes of its outstanding stock) shall be owned, directly or indirectly, by one or more persons owning 35% or more of the outstanding stock of Condor Xxxxxxxx Hospitality Trust, Inc.; and (iv) At the effective time, Operator shall be actively engaged in the trade or business of operating “qualified lodging facilities” (defined below) for a person who is not a “related person” within the meaning of Section 856(d)(9)(F) of the Code with respect to the Parent or Lessee (“Unrelated Persons”). In order to meet this requirement, Operator agrees that it (i) shall derive at least 10% of both its revenue and profit from operating “qualified lodging facilities” for Unrelated Persons and (ii) shall comply with any regulations or other administrative guidance under Section 856(d)(9) of the Code with respect to the amount of hotel management business with Unrelated Persons that is necessary to qualify as an “eligible independent contractor” with the meaning of such Code Section. (b) A “qualified lodging facility” is defined in Section 856(d)(9)(D) of the Code and means a “lodging facility” (defined below), unless wagering activities are conducted at or in connection with such facility by any person who is engaged in the business of accepting xxxxxx and who is legally authorized to engage in such business at or in connection with such facility. A “lodging facility” is a hotel, motel or other establishment more than one-half of the dwelling units in which are used on a transient basis, and includes customary amenities and facilities operated as part of, or associated with, the lodging facility so long as such amenities and facilities are customary for other properties of a comparable size and class owned by other owners unrelated to Condor Xxxxxxxx Hospitality Trust, Inc. (c) Operator shall not sublet any Hotel or enter into any similar arrangement on any basis such that the rental or other amounts to be paid by the sublessee thereunder would be based, in whole or in part, on either (a) the net income or profits derived by the business activities of the sublessee, or (b) any other formula such that any portion of the rent would fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Internal Revenue Code, or any similar or successor provision thereto.

Eligible Independent Contractor. (a) At During the effective time Term of this Agreement, Operator shall Manager must at all times qualify as an “eligible independent contractor” as defined in Section 856(d)(9) of the Internal Revenue Code of 1986, (as such section may be amended or modified from time to time during the Term hereof or any successor Code Section) (the “CodeEligible Independent Contractor”). To that end, during the Term of this Agreement, Manager agrees that: (ia) during the Operating Term, Operator Manager shall not permit wagering activities to be conducted at or in connection with the Hotels;Hotel by any person who is engaged in the business of accepting xxxxxx and who is legally authorized to engage in such business at or in connection with the Hotel; 45 (iib) during the Operating Term, Operator Manager shall not own, directly or indirectly (within the meaning of Section 856(d)(5) of the Code), more than thirty-five percent (35% %) of the shares outstanding stock of Condor Hospitality Trust, Inc.SOHO; (iiic) during the Operating Term, no more than thirty-five percent (35% %) of the total combined voting power of OperatorManager’s outstanding stock membership interests (in its assets or 35% of the total shares of all classes of its outstanding stocknet profits) shall be ownedowned (within the meaning of Section 856(d)(5) of the Code), directly or indirectly, by one or more persons owning thirty-five percent (35% %) (within the meaning of Section 856(d)(5) of the Code) or more of the outstanding stock of Condor Hospitality Trust, Inc.; andSOHO; (ivd) At Manager (or a person who is a “related person” within the effective time, Operator meaning of Section 856(d)(9)(F) of the Code (a “Related Person”) with respect to Manager) shall be actively engaged in the trade or business of operating “qualified lodging facilities” within the meaning of Section 856(d)(9)(D) of the Code (defined below) for a person one or more persons who is are not a “related person” within the meaning of Section 856(d)(9)(F) of the Code Related Persons with respect to the Parent Manager or Lessee (“Unrelated Persons”). In order to meet For purposes of determining whether the requirement of this requirementparagraph (e) has been met, Operator agrees that it Manager shall be treated as being “actively engaged” in such a trade or business if Manager (i) shall derive derives at least 10% of both its profits and revenue and profit from operating “qualified lodging facilities” within the meaning of Section 856(d)(9)(D) of the Code for Unrelated Persons and or (ii) shall comply complies with any regulations or other administrative guidance under Section 856(d)(9) of the Code that provide a “safe harbor” rule with respect to the amount of hotel management business with Unrelated Persons that is necessary to qualify as an “eligible independent contractor” with within the meaning of such Code Section. (b) section. A “qualified lodging facility” is defined in Section 856(d)(9)(D) of the Code and means a “lodging facilityLodging Facility” (defined below), unless wagering activities are conducted at or in connection with such facility by any person who is engaged in the business of accepting xxxxxx and who is legally fully authorized to engage in such business at or in connection with such facility. A “lodging facilityLodging Facility” is a hotel, motel or other establishment more than one-half of the dwelling units in which are used on a transient basis, and includes customary amenities and facilities operated as part of, or associated with, the lodging facility so long as such amenities and facilities are customary for other properties of a comparable size and class owned by other owners unrelated to Condor Hospitality Trust, Inc. (c) Operator shall not sublet any Hotel or enter into any similar arrangement on any basis such that the rental or other amounts to be paid by the sublessee thereunder would be based, in whole or in part, on either (a) the net income or profits derived by the business activities of the sublessee, or (b) any other formula such that any portion of the rent would fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Internal Revenue Code, or any similar or successor provision theretoSOHO.

Eligible Independent Contractor. (a) At During the effective time Term of this Agreement, Operator Manager shall at all times qualify as an “eligible independent contractor” as defined in Section 856(d)(9) of the Internal Revenue Code of 1986, as amended (the “CodeEligible Independent Contractor”). To that end, during the Term of this Agreement, Manager agrees that: (ia) during the Operating Term, Operator Manager shall not permit conduct wagering activities to be conducted at or in connection with any of the Hotels; (iib) during the Operating Term, Operator Manager shall not own, directly or indirectly (within the meaning of Section 856(d)(5) of the Code), more than thirty-five percent (35% %) of the shares outstanding stock of Condor Hospitality Trust, Inc.SHR; (iiic) during the Operating Term, no more than thirty-five percent (35% %) of the total combined voting power of OperatorManager’s outstanding stock partnership interest (in its assets or 35% of the total shares of all classes of its outstanding stocknet profits) shall be ownedowned (within the meaning of Section 856(d)(5) of the Code), directly or indirectly, by one or more persons owning thirty-five percent (35% %) (within the meaning of Section 856(d)(5) of the Code) or more of the outstanding stock of Condor Hospitality TrustSHR; (d) neither SHR, Inc.the Partnership, the Landlord, nor the Lessee, shall derive any income from the Manager or any of its subsidiaries; and (ive) At Manager (or a person who is a “related person” within the effective time, Operator meaning of Section 856(d)(9)(F) of the Code (a “Related Person”) with respect to Manager) shall be actively engaged in the trade or business of operating “qualified lodging facilities” within the meaning of Section 856(d)(9)(D) of the Code (defined below) for a person one or more persons who is are not a “related person” within the meaning of Section 856(d)(9)(F) of the Code Related Persons with respect to the Parent SHR or Lessee (“Unrelated Persons”). In order to meet For purposes of determining whether the requirement of this requirementparagraph (e) has been met, Operator agrees that it Manager shall be treated as being “actively engaged” in such a trade or business if Manager (i) shall derive derives at least 10% of both its profits and revenue and profit from operating “qualified lodging facilities” within the meaning of Section 856(d)(9)(D) of the Code for Unrelated Persons and or (ii) shall comply complies with any regulations or other administrative guidance under Section 856(d)(9) of the Code that provide a “safe harbor” rule with respect to the amount of hotel management business with Unrelated Persons that is necessary to qualify as an “eligible independent contractor” with within the meaning of such Code Sectionsection. (b) A “qualified lodging facility” is defined in Section 856(d)(9)(D) of the Code and means a “lodging facility” (defined below), unless wagering activities are conducted at or in connection with such facility by any person who is engaged in the business of accepting xxxxxx and who is legally authorized to engage in such business at or in connection with such facility. A “lodging facility” is a hotel, motel or other establishment more than one-half of the dwelling units in which are used on a transient basis, and includes customary amenities and facilities operated as part of, or associated with, the lodging facility so long as such amenities and facilities are customary for other properties of a comparable size and class owned by other owners unrelated to Condor Hospitality Trust, Inc. (c) Operator shall not sublet any Hotel or enter into any similar arrangement on any basis such that the rental or other amounts to be paid by the sublessee thereunder would be based, in whole or in part, on either (a) the net income or profits derived by the business activities of the sublessee, or (b) any other formula such that any portion of the rent would fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Internal Revenue Code, or any similar or successor provision thereto.

Eligible Independent Contractor. (a) At the effective time of this Agreement, Operator shall qualify as an “eligible independent contractor” as defined in Section 856(d)(9) of the Internal Revenue Code of 1986, as amended (the “Code”). To that end: (i) during the Operating Term, Operator shall not permit wagering activities to be conducted at or in connection with the Hotels; (ii) during the Operating Term, Operator shall not own, directly or indirectly (within the meaning of Section 856(d)(5) of the Code), more than 35% of the shares of Condor Hospitality Trust, Inc.; (iii) during the Operating Term, no more than 35% of the total combined voting power of Operator’s outstanding stock (or 35% of the total shares of all classes of its outstanding stock) shall be owned, directly or indirectly, by one or more persons owning 35% or more of the outstanding stock of Condor Hospitality Trust, Inc.; and (iv) At the effective time, Operator shall be actively engaged in the trade or business of operating “qualified lodging facilities” (defined below) for a person who is not a “related person” within the meaning of Section 856(d)(9)(F) of the Code with respect to the Parent or Lessee (“Unrelated Persons”). In order to meet this requirement, Operator agrees that it (i) shall derive at least 10% of both its revenue and profit from operating “qualified lodging facilities” for Unrelated Persons and (ii) shall comply with any regulations or other administrative guidance under Section 856(d)(9) of the Code with respect to the amount of hotel management business with Unrelated Persons that is necessary to qualify as an “eligible independent contractor” with the meaning of such Code Section. (b) A “qualified lodging facility” is defined in Section 856(d)(9)(D) of the Code and means a “lodging facility” (defined below), unless wagering activities are conducted at or in connection with such facility by any person who is engaged in the business of accepting xxxxxx and wagxxx xxd who is legally authorized to engage in such business at or in connection with such facility. A “lodging facility” is a hotel, motel or other establishment more than one-half of the dwelling units in which are used on a transient basis, and includes customary amenities and facilities operated as part of, or associated with, the lodging facility so long as such amenities and facilities are customary for other properties of a comparable size and class owned by other owners unrelated to Condor Hospitality Trust, Inc. (c) Operator shall not sublet any Hotel or enter into any similar arrangement on any basis such that the rental or other amounts to be paid by the sublessee thereunder would be based, in whole or in part, on either (a) the net income or profits derived by the business activities of the sublessee, or (b) any other formula such that any portion of the rent would fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Internal Revenue Code, or any similar or successor provision thereto.

Eligible Independent Contractor. (a) At the effective time of this Agreement, Operator shall qualify as an “eligible independent contractor” as defined in Section 856(d)(9) of the Internal Revenue Code of 1986, as amended (the “Code”). To that end: (i) during the Operating Term, Operator shall not permit wagering activities to be conducted at or in connection with the HotelsHotel; (ii) during the Operating Term, Operator shall not own, directly or indirectly (within the meaning of Section 856(d)(5) of the Code), more than 35% of the shares of Condor Hospitality Trust, Inc.; (iii) during the Operating Term, no more than 35% of the total combined voting power of Operator’s outstanding stock (or 35% of the total shares of all classes of its outstanding stock) shall be owned, directly or indirectly, by 52 one or more persons owning 35% or more of the outstanding stock of Condor Hospitality Trust, Inc.; and (iv) At the effective time, Operator shall be actively engaged in the trade or business of operating “qualified lodging facilities” (defined below) for a person who is not a “related person” within the meaning of Section 856(d)(9)(F) of the Code with respect to the Parent or Lessee (“Unrelated Persons”). In order to meet this requirement, Operator agrees that it (i) shall derive at least 10% of both its revenue and profit from operating “qualified lodging facilities” for Unrelated Persons and (ii) shall comply with any regulations or other administrative guidance under Section 856(d)(9) of the Code with respect to the amount of hotel management business with Unrelated Persons that is necessary to qualify as an “eligible independent contractor” with the meaning of such Code Sectionsection. (b) A “qualified lodging facility” is defined in Section 856(d)(9)(D) of the Code and means a “lodging facility” (defined below), unless wagering activities are conducted at or in connection with such facility by any person who is engaged in the business of accepting xxxxxx wxxxxx and who is legally authorized to engage in such business at or in connection with such facility. A “lodging facility” is a hotel, motel or other establishment more than one-half of the dwelling units in which are used on a transient basis, and includes customary amenities and facilities operated as part of, or associated with, the lodging facility so long as such amenities and facilities are customary for other properties of a comparable size and class owned by other owners unrelated to Condor Hospitality Trust, Inc. (c) Operator shall not sublet any the Hotel or enter into any similar arrangement on any basis such that the rental or other amounts to be paid by the sublessee thereunder would be based, in whole or in part, on either (a) the net income or profits derived by the business activities of the sublessee, or (b) any other formula such that any portion of the rent would fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Internal Revenue Code, or any similar or successor provision thereto.

Eligible Independent Contractor. A management company that meets all of the following requirements: (a) At the effective time of this Agreement, Operator shall qualify as an “eligible independent contractor” as defined in Section 856(d)(9) of the Internal Revenue Code of 1986, as amended (the “Code”). To that end: (i) during the Operating Term, Operator shall not permit wagering activities to be conducted at or in connection with the Hotels; (ii) during the Operating Term, Operator shall The management company does not own, directly or indirectly (within the meaning of Section 856(d)(5) of the Code)indirectly, more than 35% of the shares outstanding stock of Condor Eagle Hospitality Properties Trust, Inc.; (iiib) during If the Operating Termmanagement company is a corporation, no more than 35% of the total combined voting power of Operator’s its outstanding stock (or 35% of the total shares of all classes of its outstanding stock) shall be or, if it is not a corporation, no more than 35% of the ownership interest in its assets or net profits is owned, directly or indirectly, by one or more persons Persons owning 35% or more of the outstanding stock of Condor Eagle Hospitality Properties Trust, Inc.; and (ivc) Neither Eagle Hospitality Properties Trust, Inc., Lessor nor Lessee derives any income from the management company. (d) At the effective timetime that the management company enters into a management agreement with Lessee to operate the Leased Property, Operator shall be the management company (or any “related person” within the meaning of Section 856(d)(9)(F) of the Code) is actively engaged in the trade or business of operating “qualified lodging facilities” (defined belowwithin the meaning of Section 856(d)(9)(D) of the Code for a person any Person who is not a “related person” within the meaning of Section 856(d)(9)(F) of the Code with respect to the Parent Eagle Hospitality Properties Trust, Inc. or Lessee (an “Unrelated PersonsPerson”). In order to meet For purposes of determining whether the requirement of this requirementparagraph (d) has been met, Operator agrees that it a management company shall be treated as being actively engaged in such a trade or business if the management company (i) shall derive derives at least 10% of both its profits and revenue and profit from operating “qualified lodging facilities” for within the meaning of Section 856(d)(9)(D) of the Code from Unrelated Persons and or (ii) shall comply complies with any regulations or other administrative guidance under Section 856(d)(9) of the Code that provide a “safe harbor” rule with respect to the amount of hotel management business with Unrelated Persons that is necessary to qualify as an “eligible independent contractor” with within the meaning of such Code Sectionsection. (b) A “qualified lodging facility” is defined in Section 856(d)(9)(D) of the Code and means a “lodging facility” (defined below), unless wagering activities are conducted at or in connection with such facility by any person who is engaged in the business of accepting xxxxxx and who is legally authorized to engage in such business at or in connection with such facility. A “lodging facility” is a hotel, motel or other establishment more than one-half of the dwelling units in which are used on a transient basis, and includes customary amenities and facilities operated as part of, or associated with, the lodging facility so long as such amenities and facilities are customary for other properties of a comparable size and class owned by other owners unrelated to Condor Hospitality Trust, Inc. (c) Operator shall not sublet any Hotel or enter into any similar arrangement on any basis such that the rental or other amounts to be paid by the sublessee thereunder would be based, in whole or in part, on either (a) the net income or profits derived by the business activities of the sublessee, or (b) any other formula such that any portion of the rent would fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Internal Revenue Code, or any similar or successor provision thereto.

Eligible Independent Contractor. (a) At During the effective time Term of this Agreement, Operator Manager shall at all times qualify as an “eligible independent contractor” as defined in Section 856(d)(9) of the Internal Revenue Code of 1986, as amended (the “CodeEligible Independent Contractor”). To that end, during the Term of this Agreement, Manager agrees that: (ia) during the Operating Term, Operator Manager shall not permit conduct wagering activities to be conducted at or in connection with any of the Hotels; (iib) during the Operating Term, Operator Manager shall not own, directly or indirectly (within the meaning of Section 856(d)(5) of the Code), more than thirty-five percent (35% %) of the shares outstanding stock of Condor Hospitality Trust, Inc.Braemar; (iiic) during the Operating Term, no more than thirty-five percent (35% %) of the total combined voting power of OperatorManager’s outstanding stock partnership interest (in its assets or 35% of the total shares of all classes of its outstanding stocknet profits) shall be ownedowned (within the meaning of Section 856(d)(5) of the Code), directly or indirectly, by one or more persons owning thirty-five percent (35% %) (within the meaning of Section 856(d)(5) of the Code) or more of the outstanding stock of Condor Hospitality TrustBraemar; (d) neither Braemar, Inc.the Partnership, the Landlords, nor the Lessee, shall derive any income from the Manager or any of its subsidiaries; and (ive) At Manager (or a person who is a “related person” within the effective time, Operator meaning of Section 856(d)(9)(F) of the Code (a “Related Person”) with respect to Manager) shall be actively engaged in the trade or business of operating “qualified lodging facilities” within the meaning of Section 856(d)(9)(D) of the Code (defined below) for a person one or more persons who is are not a “related person” within the meaning of Section 856(d)(9)(F) of the Code Related Persons with respect to the Parent Braemar or Lessee (“Unrelated Persons”). In order to meet For purposes of determining whether the requirement of this requirementparagraph (e) has been met, Operator agrees that it Manager shall be treated as being “actively engaged” in such a trade or business if Manager (i) shall derive derives at least 10% of both its profits and revenue and profit from operating “qualified lodging facilities” within the meaning of Section 856(d)(9)(D) of the Code for Unrelated Persons and or (ii) shall comply complies with any regulations or other administrative guidance under Section 856(d)(9) of the Code that provide a “safe harbor” rule with respect to the amount of hotel management business with Unrelated Persons that is necessary to qualify as an “eligible independent contractor” with within the meaning of such Code Sectionsection. (b) A “qualified lodging facility” is defined in Section 856(d)(9)(D) of the Code and means a “lodging facility” (defined below), unless wagering activities are conducted at or in connection with such facility by any person who is engaged in the business of accepting xxxxxx and who is legally authorized to engage in such business at or in connection with such facility. A “lodging facility” is a hotel, motel or other establishment more than one-half of the dwelling units in which are used on a transient basis, and includes customary amenities and facilities operated as part of, or associated with, the lodging facility so long as such amenities and facilities are customary for other properties of a comparable size and class owned by other owners unrelated to Condor Hospitality Trust, Inc. (c) Operator shall not sublet any Hotel or enter into any similar arrangement on any basis such that the rental or other amounts to be paid by the sublessee thereunder would be based, in whole or in part, on either (a) the net income or profits derived by the business activities of the sublessee, or (b) any other formula such that any portion of the rent would fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Internal Revenue Code, or any similar or successor provision thereto.

Eligible Independent Contractor. (a) At During the effective time Term of this Agreement, Operator Manager shall at all times qualify as an “"eligible independent contractor” " as defined in Section 856(d)(9) of the Internal Revenue Code of 1986, as amended (the “Code”"ELIGIBLE INDEPENDENT Contractor"). To that end, during the Term of this Agreement, Manager agrees that: (ia) during the Operating Term, Operator Manager shall not permit conduct wagering activities to be conducted at or in connection with any of the Hotels; (iib) during the Operating Term, Operator Manager shall not own, directly or indirectly (within the meaning of Section 856(d)(5) of the Code), more than thirty-five percent (35% %) of the shares outstanding stock of Condor Hospitality Trust, Inc.AHT; (iiic) during the Operating Term, no more than thirty-five percent (35% %) of the total combined voting power of Operator’s outstanding stock Manager's partnership interest (in its assets or 35% of the total shares of all classes of its outstanding stocknet profits) shall be ownedowned (within the meaning of Section 856(d)(5) of the Code), directly or indirectly, by one or more persons owning thirty-five percent (35% %) (within the meaning of Section 856(d)(5) of the Code) or more of the outstanding stock of Condor Hospitality TrustAHT; (d) neither AHT, Inc.the Partnership, the Landlords, nor the Lessee, shall derive any income from the Manager or any of its subsidiaries; and (ive) At Manager (or a person who is a "related person" within the effective time, Operator meaning of Section 856(d)(9)(F) of the Code (a "RELATED PERSON") with respect to Manager) shall be actively engaged in the trade or business of operating “"qualified lodging facilities” " within the meaning of Section 856(d)(9)(D) of the Code (defined below) for a person one or more persons who is are not a “related person” within the meaning of Section 856(d)(9)(F) of the Code Related Persons with respect to the Parent AHT or Lessee (“Unrelated Persons”"UNRELATED PERSONS"). In order to meet For purposes of determining whether the requirement of this requirementparagraph (e) has been met, Operator agrees that it Manager shall be treated as being "actively engaged" in such a trade or business if Manager (i) shall derive derives at least 10% of both its profits and revenue and profit from Hotel Master Management Agreement Ashford TRS Corporation operating “"qualified lodging facilities” " within the meaning of Section 856(d)(9)(D) of the Code for Unrelated Persons and or (ii) shall comply complies with any regulations or other administrative guidance under Section 856(d)(9) of the Code that provide a "safe harbor" rule with respect to the amount of hotel management business with Unrelated Persons that is necessary to qualify as an “"eligible independent contractor” with " within the meaning of such Code Sectionsection. (b) A “qualified lodging facility” is defined in Section 856(d)(9)(D) of the Code and means a “lodging facility” (defined below), unless wagering activities are conducted at or in connection with such facility by any person who is engaged in the business of accepting xxxxxx and who is legally authorized to engage in such business at or in connection with such facility. A “lodging facility” is a hotel, motel or other establishment more than one-half of the dwelling units in which are used on a transient basis, and includes customary amenities and facilities operated as part of, or associated with, the lodging facility so long as such amenities and facilities are customary for other properties of a comparable size and class owned by other owners unrelated to Condor Hospitality Trust, Inc. (c) Operator shall not sublet any Hotel or enter into any similar arrangement on any basis such that the rental or other amounts to be paid by the sublessee thereunder would be based, in whole or in part, on either (a) the net income or profits derived by the business activities of the sublessee, or (b) any other formula such that any portion of the rent would fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Internal Revenue Code, or any similar or successor provision thereto.

Eligible Independent Contractor. (a) At During the effective time Term of this Agreement, Operator shall Manager must at all times qualify as an “eligible independent contractor” as defined in Section 856(d)(9) of the Internal Revenue Code of 1986, (as such section may be amended or modified from time to time during the Term hereof or any successor Code Section) (the “CodeEligible Independent Contractor”). To that end, during the Term of this Agreement, Manager agrees that: (ia) during the Operating Term, Operator Manager shall not permit wagering activities to be conducted at or in connection with the Hotels;Hotel by any person who is engaged in the business of accepting xxxxxx and who is legally authorized to engage in such business at or in connection with the Hotel; 8477886-v2\WASDMS 45 (iib) during the Operating Term, Operator Manager shall not own, directly or indirectly (within the meaning of Section 856(d)(5) of the Code), more than thirty-five percent (35% %) of the shares outstanding stock of Condor Hospitality Trust, Inc.SOHO; (iiic) during the Operating Term, no more than thirty-five percent (35% %) of the total combined voting power of OperatorManager’s outstanding stock membership interests (in its assets or 35% of the total shares of all classes of its outstanding stocknet profits) shall be ownedowned (within the meaning of Section 856(d)(5) of the Code), directly or indirectly, by one or more persons owning thirty-five percent (35% %) (within the meaning of Section 856(d)(5) of the Code) or more of the outstanding stock of Condor Hospitality Trust, Inc.; andSOHO; (ivd) At Manager (or a person who is a “related person” within the effective time, Operator meaning of Section 856(d)(9)(F) of the Code (a “Related Person”) with respect to Manager) shall be actively engaged in the trade or business of operating “qualified lodging facilities” within the meaning of Section 856(d)(9)(D) of the Code (defined below) for a person one or more persons who is are not a “related person” within the meaning of Section 856(d)(9)(F) of the Code Related Persons with respect to the Parent Manager or Lessee (“Unrelated Persons”). In order to meet For purposes of determining whether the requirement of this requirementparagraph (e) has been met, Operator agrees that it Manager shall be treated as being “actively engaged” in such a trade or business if Manager (i) shall derive derives at least 10% of both its profits and revenue and profit from operating “qualified lodging facilities” within the meaning of Section 856(d)(9)(D) of the Code for Unrelated Persons and or (ii) shall comply complies with any regulations or other administrative guidance under Section 856(d)(9) of the Code that provide a “safe harbor” rule with respect to the amount of hotel management business with Unrelated Persons that is necessary to qualify as an “eligible independent contractor” with within the meaning of such Code Section. (b) section. A “qualified lodging facility” is defined in Section 856(d)(9)(D) of the Code and means a “lodging facilityLodging Facility” (defined below), unless wagering activities are conducted at or in connection with such facility by any person who is engaged in the business of accepting xxxxxx and who is legally fully authorized to engage in such business at or in connection with such facility. A “lodging facilityLodging Facility” is a hotel, motel or other establishment more than one-half of the dwelling units in which are used on a transient basis, and includes customary amenities and facilities operated as part of, or associated with, the lodging facility so long as such amenities and facilities are customary for other properties of a comparable size and class owned by other owners unrelated to Condor Hospitality Trust, Inc. (c) Operator shall not sublet any Hotel or enter into any similar arrangement on any basis such that the rental or other amounts to be paid by the sublessee thereunder would be based, in whole or in part, on either (a) the net income or profits derived by the business activities of the sublessee, or (b) any other formula such that any portion of the rent would fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Internal Revenue Code, or any similar or successor provision theretoSOHO.

Eligible Independent Contractor. (a) At During the effective time Term of this Agreement, Operator Manager shall at all times qualify as an “eligible independent contractor” as defined in (an “Eligible Independent Contractor”) within the meaning of Section 856(d)(9) of the Internal Revenue Code of 1986, as amended (the “Code”). To that end, Manager covenants that, during the Term of this Agreement: (ia) during the Operating Term, Operator Manager shall not conduct or permit wagering activities to be conducted at or in connection with any of the Hotels; (iib) during the Operating Term, Operator Manager shall not own, directly or indirectly own (within the meaning of Section 856(d)(5) of the Code), ) more than 35% twenty-five percent (25%) of the shares outstanding stock of Condor Hospitality TrustCapital Lodging, Inc.a Maryland real estate investment trust (“Capital Lodging”); (iiic) during the Operating Term, no more than thirty-five percent (35% %) of either (i) the total combined voting power in Manager (determined by reference to interests in the capital stock of Operator’s outstanding stock Manager) or (or 35% of ii) the total shares of all classes of its outstanding stock) capital stock of Manager shall be owned, directly or indirectly, owned (within the meaning of Section 856(d)(5) of the Code) by one or more persons owning (within the meaning of Section 856(d)(5) of the Code) in the aggregate thirty-five percent (35% %) or more of the outstanding stock of Condor Hospitality Trust, Inc.; andCapital Lodging; (ivd) At Manager (or a person who is a “related person,” within the effective timemeaning of Section 856(d)(9)(F) of the Code (a “Related Person”), Operator with respect to Manager) shall be actively engaged in the trade or business of operating “qualified lodging facilitiesQualified Lodging Facilities,” (as defined below) , for a person one or more persons who is are not a “related person” within the meaning of Section 856(d)(9)(F) of the Code Related Persons with respect to the Parent Capital Lodging or Lessee Owner (“Unrelated Persons”). In order to meet For purposes of determining whether the requirements of this requirementSection 23.09(d) have been met, Operator agrees that it Manager shall be treated as being actively engaged in such a trade or business if Manager (i) shall derive derives at least lWest ten percent (10% %) of both its revenue profits and profit revenues from operating “qualified lodging facilities” Qualified Lodging Facilities for Unrelated Persons and Persons, or (ii) shall comply complies with any regulations or other administrative guidance under Section 856(d)(9) of the Code with respect to the amount of hotel management business with Unrelated Persons that is necessary for Manager to qualify as an “eligible independent contractor” with the meaning of such Code SectionEligible Independent Contractor. (be) A For purposes of this Section 23.09, a “qualified lodging facilityQualified Lodging Facility” is defined in Section 856(d)(9)(D) of the Code and means a “lodging facility” (Lodging Facility, as defined below), unless wagering activities are conducted at or in connection with such facility by any person who is engaged in the business of accepting xxxxxx and who is legally fully authorized to engage in such business activities at or in connection with such facility. A “lodging facilityLodging Facility” is a hotel, motel motel, or other establishment more than one-half of the dwelling units in which are used on a transient basis, and includes customary amenities and facilities operated as part of, or associated with, the lodging facility so long as such amenities and facilities are customary for other properties of a comparable size and class owned by other owners unrelated to Condor Hospitality Trust, Inc. (c) Operator shall not sublet any Hotel or enter into any similar arrangement on any basis such that the rental or other amounts to be paid by the sublessee thereunder would be based, in whole or in part, on either (a) the net income or profits derived by the business activities of the sublessee, or (b) any other formula such that any portion of the rent would fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Internal Revenue Code, or any similar or successor provision theretowho are Unrelated Persons.

Eligible Independent Contractor. (a) At During the effective time Term of this Agreement, Operator Manager shall at all times qualify as an “eligible independent contractor” as defined in Section 856(d)(9) of the Internal Revenue Code of 1986, as amended (the “CodeEligible Independent Contractor”). To that end, during the Term of this Agreement, Manager agrees that: (ia) during the Operating Term, Operator Manager shall not permit conduct wagering activities to be conducted at or in connection with any of the Hotels; (iib) during the Operating Term, Operator Manager shall not own, directly or indirectly (within the meaning of Section 856(d)(5) of the Code), more than thirty-five percent (35% %) of the shares outstanding stock of Condor Hospitality Trust, Inc.AHT; (iiic) during the Operating Term, no more than thirty-five percent (35% %) of the total combined voting power of OperatorManager’s outstanding stock partnership interest (in its assets or 35% of the total shares of all classes of its outstanding stocknet profits) shall be ownedowned (within the meaning of Section 856(d)(5) of the Code), directly or indirectly, by one or more persons owning thirty-five percent (35% %) (within the meaning of Section 856(d)(5) of the Code) or more of the outstanding stock of Condor Hospitality TrustAHT; (d) neither AHT, Inc.the Partnership, the Landlords, nor the Lessee, shall derive any income from the Manager or any of its subsidiaries; and (ive) At Manager (or a person who is a “related person” within the effective time, Operator meaning of Section 856(d)(9)(F) of the Code (a “Related Person”) with respect to Manager) shall be actively engaged in the trade or business of operating “qualified lodging facilities” within the meaning of Section 856(d)(9)(D) of the Code (defined below) for a person one or more persons who is are not a “related person” within the meaning of Section 856(d)(9)(F) of the Code Related Persons with respect to the Parent AHT or Lessee (“Unrelated Persons”). In order to meet For purposes of determining whether the requirement of this requirementparagraph (e) has been met, Operator agrees that it Manager shall be treated as being “actively engaged” in such a trade or business if Manager (i) shall derive derives at least 10% of both its profits and revenue and profit from operating “qualified Hotel Master Management Agreement Ashford TRS Corporation File No. 145765 lodging facilities” within the meaning of Section 856(d)(9)(D) of the Code for Unrelated Persons and or (ii) shall comply complies with any regulations or other administrative guidance under Section 856(d)(9) of the Code that provide a “safe harbor” rule with respect to the amount of hotel management business with Unrelated Persons that is necessary to qualify as an “eligible independent contractor” with within the meaning of such Code Sectionsection. (b) A “qualified lodging facility” is defined in Section 856(d)(9)(D) of the Code and means a “lodging facility” (defined below), unless wagering activities are conducted at or in connection with such facility by any person who is engaged in the business of accepting xxxxxx and who is legally authorized to engage in such business at or in connection with such facility. A “lodging facility” is a hotel, motel or other establishment more than one-half of the dwelling units in which are used on a transient basis, and includes customary amenities and facilities operated as part of, or associated with, the lodging facility so long as such amenities and facilities are customary for other properties of a comparable size and class owned by other owners unrelated to Condor Hospitality Trust, Inc. (c) Operator shall not sublet any Hotel or enter into any similar arrangement on any basis such that the rental or other amounts to be paid by the sublessee thereunder would be based, in whole or in part, on either (a) the net income or profits derived by the business activities of the sublessee, or (b) any other formula such that any portion of the rent would fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Internal Revenue Code, or any similar or successor provision thereto.

Eligible Independent Contractor. (a) At the effective time of this Agreement, Operator shall qualify as an “eligible independent contractor” as defined in Section 856(d)(9) of the Internal Revenue Code of 1986, as amended (the “Code”). To that end: (i) during the Operating Term, Operator shall not permit wagering activities to be conducted at or in connection with the HotelsHotel; (ii) during the Operating Term, Operator shall not own, directly or indirectly (within the meaning of Section 856(d)(5) of the Code), more than 35% of the shares of Condor Hospitality Trust, Inc.; (iii) during the Operating Term, no more than 35% of the total combined voting power of Operator’s outstanding stock (or 35% of the total shares of all classes of its outstanding stock) shall be owned, directly or indirectly, by one or more persons owning 35% or more of the outstanding stock of Condor Hospitality Trust, Inc.; and (iv) At the effective time, Operator shall be actively engaged in the trade or business of operating “qualified lodging facilities” (defined below) for a person who is not a “related person” within the meaning of Section 856(d)(9)(F) of the Code with respect to the Parent or Lessee (“Unrelated Persons”). In order to meet this requirement, Operator agrees that it (i) shall derive at least 10% of both its revenue and profit from operating “qualified lodging facilities” for Unrelated Persons and (ii) shall comply with any regulations or other administrative guidance under Section 856(d)(9) of the Code with respect to the amount of hotel management business with Unrelated Persons that is necessary to qualify as an “eligible independent contractor” with the meaning of such Code Sectionsection. (b) A “qualified lodging facility” is defined in Section 856(d)(9)(D) of the Code and means a “lodging facility” (defined below), unless wagering activities are conducted at or in connection with such facility by any person who is engaged in the business of accepting xxxxxx and who is legally authorized to engage in such business at or in connection with such facility. A “lodging facility” is a hotel, motel or other establishment more than one-half of the dwelling units in which are used on a transient basis, and includes customary amenities and facilities operated as part of, or associated with, the lodging facility so long as such amenities and facilities are customary for other properties of a comparable size and class owned by other owners unrelated to Condor Hospitality Trust, Inc. (c) Operator shall not sublet any the Hotel or enter into any similar arrangement on any basis such that the rental or other amounts to be paid by the sublessee thereunder would be based, in whole or in part, on either (a) the net income or profits derived by the business activities of the sublessee, or (b) any other formula such that any portion of the rent would fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Internal Revenue Code, or any similar or successor provision thereto.

Eligible Independent Contractor. (a) At During the effective time Term of this Agreement, Operator Manager shall at all times qualify as an “eligible independent contractor” as defined in Section 856(d)(9) of the Internal Revenue Code with respect to each of 1986, as amended AHT and PRISA III REIT (the “CodeEligible Independent Contractor”). To that end, during the Term of this Agreement, Manager agrees that: (ia) during the Operating Term, Operator Manager shall not permit conduct wagering activities to be conducted at or in connection with any of the Hotels; (iib) during the Operating Term, Operator Manager shall not own, directly or indirectly (within the meaning of Section 856(d)(5) of the Code), more than thirty-five percent (35% %) of the shares outstanding stock of Condor Hospitality Trust, Inc.AHT or PRISA III REIT; (iiic) during the Operating Term, no more than thirty-five percent (35% %) of the total combined voting power of OperatorManager’s outstanding stock partnership interest (in its assets or 35% of the total shares of all classes of its outstanding stocknet profits) shall be ownedowned (within the meaning of Section 856(d)(5) of the Code), directly or indirectly, by one or more persons owning thirty-five percent (35% %) (within the meaning of Section 856(d)(5) of the Code) or more of the outstanding stock of Condor Hospitality TrustAHT or PRISA III REIT; (d) none of AHT, Inc.PRISA III REIT, the Partnership, the Landlords or the Lessees nor any direct or indirect subsidiary of any of the foregoing, shall derive or receive any income from the Manager or any of its subsidiaries; and (ive) At Manager (or a person who is a “related person” within the effective time, Operator meaning of Section 856(d)(9)(F) of the Code (a “Related Person”) with respect to Manager) shall be actively engaged in the trade or business of operating “qualified lodging facilities” within the meaning of Section 856(d)(9)(D) of the Code (defined below) for a person one or more persons who is are not a “related person” within the meaning of Section 856(d)(9)(F) of the Code Related Persons with respect to AHT, PRISA III REIT, the Parent Partnership, Landlord, TRS or Lessee or any direct or indirect subsidiary of the foregoing (“Unrelated Persons”). In order to meet For purposes of determining whether the requirement of this requirementparagraph (e) has been met, Operator agrees that it Manager shall be treated as being “actively engaged” in such a trade or business if Manager (i) shall derive is actively engaged in the trade or business of operating at least 10% of both its revenue and profit from operating three “qualified lodging facilities” for Unrelated Persons Persons, and intends to continue to be actively engaged in such trade or business or (ii) shall comply complies with any regulations or other administrative guidance under Section 856(d)(9) of the Code that provide a “safe harbor” rule with respect to the amount of hotel management business with Unrelated Persons that is necessary to qualify as an “eligible independent contractor” with within the meaning of such Code Sectionsection; provided, however, that Manager acknowledges that any private letter ruling issued to AHT in respect of Manager’s eligible independent contractor status shall in no way be deemed to constitute administrative guidance or a safe harbor for purposes of determining whether Manager satisfies the requirements of this clause (e) with respect to PRISA III REIT. (bf) A “qualified lodging facility” is defined in Section 856(d)(9)(D) of the Code and means a “lodging facility” (defined below), unless wagering activities are conducted Manager shall not offer or provide any amenities or facilities at or in connection with such facility by the Hotels other than Customary Amenities (defined below); and (g) Except to the extent specifically permitted in the second sentence to this clause (g), no person that is a director, trustee, officer, manager, general partner or employee of Manager, any person who is engaged in the business with whom Manager contracts to operate or manage a Hotel, nor any direct or indirect subsidiary of accepting xxxxxx and who is legally authorized to engage in such business at or in connection with such facility. A “lodging facility” is a hotel, motel or other establishment more than one-half any of the dwelling units in which are used on foregoing (“Manager-Affiliated Person”) is or shall be a transient basisdirector, and includes customary amenities and facilities operated as part oftrustee, officer, manager, general partner or associated withemployee of PRISA III REIT, the lodging facility so long as such amenities and facilities are customary for other properties Partnership, TRS, Lessee, Landlord or any direct or indirect subsidiary of a comparable size and class owned by other owners unrelated to Condor Hospitality Trust, Inc. (c) Operator shall not sublet any Hotel or enter into any similar arrangement on any basis such that the rental or other amounts to be paid by the sublessee thereunder would be based, in whole or in part, on either (a) the net income or profits derived by the business activities of the sublesseeforegoing (“REIT-Affiliated Person”) and no Manager Affiliated Person shall act in any fiduciary capacity with respect to any of PRISA III REIT, the Partnership, TRS, Lessee, Landlord or (b) any other formula such that direct or indirect subsidiary of any portion of the rent would fail to qualify as “rents from real property” within foregoing. Notwithstanding the meaning of Section 856(d) foregoing, it is acknowledged and agreed that Xxxxx Xxxxxxx may serve on the executive committee of the Internal Revenue Code, or any similar or successor provision theretoPartnership.

Eligible Independent Contractor. (a) At During the effective time Term of this Agreement, Operator Manager shall at all times qualify as an “eligible independent contractor” as defined in Section 856(d)(9) of the Internal Revenue Code of 1986, (as such section may be amended or modified from time to time during the Term hereof or any successor Code Section) (the “CodeEligible Independent Contractor”). To that end, during the Term of this Agreement, Manager agrees that: (ia) during the Operating Term, Operator Manager shall not permit wagering activities to be conducted at or in connection with the HotelsHotel by any person who is engaged in the business of accepting xxxxxx and who is legally authorized to engage in such business at or in connection with the Hotel; (iib) during the Operating Term, Operator Manager shall not own, directly or indirectly (within the meaning of Section 856(d)(5) of the Code), more than thirty-five percent (35% %) of the shares outstanding stock of Condor Hospitality Trust, Inc.SOHO; (iiic) during the Operating Term, no more than thirty-five percent (35% %) of the total combined voting power of OperatorManager’s outstanding stock membership interests (in its assets or 35% of the total shares of all classes of its outstanding stocknet profits) shall be ownedowned (within the meaning of Section 856(d)(5) of the Code), directly or indirectly, by one or more persons owning thirty-five percent (35% %) (within the meaning of Section 856(d)(5) of the Code) or more of the outstanding stock of Condor Hospitality Trust, Inc.; andSOHO; (ivd) At Manager (or a person who is a “related person” within the effective time, Operator meaning of Section 856(d)(9)(F) of the Code (a “Related Person”) with respect to Manager) shall be actively engaged in the trade or business of operating “qualified lodging facilities” within the meaning of Section 856(d)(9)(D) of the Code (defined below) for a person one or more persons who is are not a “related person” within the meaning of Section 856(d)(9)(F) of the Code Related Persons with respect to the Parent MHI or Lessee (“Unrelated Persons”). In order to meet For purposes of determining whether the requirement of this requirementparagraph (e) has been met, Operator agrees that it Manager shall be treated as being “actively engaged” in such a trade or business if Manager (i) shall derive derives at least 10% of both its profits and revenue and profit from operating “qualified lodging facilities” within the meaning of Section 856(d)(9)(D) of the Code for Unrelated Persons and or (ii) shall comply complies with any regulations or other administrative guidance under Section 856(d)(9) of the Code that provide a “safe harbor” rule with respect to the amount of hotel management business with Unrelated Persons that is necessary to qualify as an “eligible independent contractor” with within the meaning of such Code Section. (b) section. A “qualified lodging facility” is defined in Section 856(d)(9)(D) of the Code and means a “lodging facilityLodging Facility” (defined below), unless wagering activities are conducted at or in connection with such facility by any person who is engaged in the business of accepting xxxxxx and who is legally fully authorized to engage in such business at or in connection with such facility. A “lodging facilityLodging Facility” is a hotel, motel or other establishment more than one-half of the dwelling units in which are used on a transient basis, and includes customary amenities and facilities operated as part of, or associated with, the lodging facility so long as such amenities and facilities are customary for other properties of a comparable size and class owned by other owners unrelated to Condor Hospitality Trust, Inc. (c) Operator shall not sublet any Hotel or enter into any similar arrangement on any basis such that the rental or other amounts to be paid by the sublessee thereunder would be based, in whole or in part, on either (a) the net income or profits derived by the business activities of the sublessee, or (b) any other formula such that any portion of the rent would fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Internal Revenue Code, or any similar or successor provision theretoSOHO.

Eligible Independent Contractor. (a) At During the effective time Term of this Agreement, Operator Manager shall at all times qualify as an “eligible independent contractor” as defined in Section 856(d)(9) of the Internal Revenue Code of 1986, as amended (the “CodeEligible Independent Contractor”). To that end, during the Term of this Agreement, Manager agrees that: (ia) during the Operating Term, Operator Manager shall not permit conduct wagering activities to be conducted at or in connection with any of the Hotels; (iib) during the Operating Term, Operator Manager shall not own, directly or indirectly (within the meaning of Section 856(d)(5) of the Code), more than thirty-five percent (35% %) of the shares outstanding stock of Condor Hospitality Trust, Inc.AHP; (iiic) during the Operating Term, no more than thirty-five percent (35% %) of the total combined voting power of OperatorManager’s outstanding stock partnership interest (in its assets or 35% of the total shares of all classes of its outstanding stocknet profits) shall be ownedowned (within the meaning of Section 856(d)(5) of the Code), directly or indirectly, by one or more persons owning thirty-five percent (35% %) (within the meaning of Section 856(d)(5) of the Code) or more of the outstanding stock of Condor Hospitality TrustAHP; (d) neither AHP, Inc.the Partnership, the Landlords, nor the Lessee, shall derive any income from the Manager or any of its subsidiaries; and (ive) At Manager (or a person who is a “related person” within the effective time, Operator meaning of Section 856(d)(9)(F) of the Code (a “Related Person”) with respect to Manager) shall be actively engaged in the trade or business of operating “qualified lodging facilities” within the meaning of Section 856(d)(9)(D) of the Code (defined below) for a person one or more persons who is are not a “related person” within the meaning of Section 856(d)(9)(F) of the Code Related Persons with respect to the Parent AHP or Lessee (“Unrelated Persons”). In order to meet For purposes of determining whether the requirement of this requirementparagraph (e) has been met, Operator agrees that it Manager shall be treated as being “actively engaged” in such a trade or business if Manager (i) shall derive derives at least 10% of both its profits and revenue and profit from operating “qualified lodging facilities” within the meaning of Section 856(d)(9)(D) of the Code for Unrelated Persons and or (ii) shall comply complies with any regulations or other administrative guidance under Section 856(d)(9) of the Code that provide a “safe harbor” rule with respect to the amount of hotel management business with Unrelated Persons that is necessary to qualify as an “eligible independent contractor” with within the meaning of such Code Section. (b) section. A “qualified lodging facility” is defined in Section 856(d)(9)(D) of the Code and means a “lodging facilityLodging Facility” (defined below), unless wagering activities are conducted at or in connection with such facility by any person who is engaged in the business of accepting xxxxxx and who is legally fully authorized to engage in such business at or in connection with such facility. A “lodging facilityLodging Facility” is a hotel, motel or other establishment more than one-half of the dwelling units in which are used on a transient basis, and includes customary amenities and facilities operated as part party of, or associated with, the lodging facility so long as such amenities and facilities are customary for other properties of a comparable size and class owned by other owners unrelated to Condor Hospitality Trust, Inc. (c) Operator shall not sublet any Hotel or enter into any similar arrangement on any basis such that the rental or other amounts to be paid by the sublessee thereunder would be based, in whole or in part, on either (a) the net income or profits derived by the business activities of the sublessee, or (b) any other formula such that any portion of the rent would fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Internal Revenue Code, or any similar or successor provision theretoAHP.

Eligible Independent Contractor. (a) At the effective time of this Agreement, Operator shall qualify as an “eligible independent contractor” as defined in Section 856(d)(9) of the Internal Revenue Code of 1986, as amended (the “Code”). To that end: (i) during the Operating Term, Operator shall not permit wagering activities to be conducted at or in connection with the HotelsHotel; (ii) during the Operating Term, Operator shall not own, directly or indirectly (within the meaning of Section 856(d)(5) of the Code), more than 35% of the shares of Condor Hospitality Trust, Inc.; (iii) during the Operating Term, no more than 35% of the total combined voting power of Operator’s outstanding stock (or 35% of the total shares of all classes of its outstanding stock) shall be owned, directly or indirectly, by one or more persons owning 35% or more of the outstanding stock of Condor Hospitality Trust, Inc.; and (iv) At the effective time, Operator shall be actively engaged in the trade or business of operating “qualified lodging facilities” (defined below) for a person who is not a “related person” within the meaning of Section 856(d)(9)(F) of the Code with respect to the Parent or Lessee (“Unrelated Persons”). In order to meet this requirement, Operator agrees that it (i) shall derive at least 10% of both its revenue and profit from operating “qualified lodging facilities” for Unrelated Persons and (ii) shall comply with any regulations or other administrative guidance under Section 856(d)(9) of the Code with respect to the amount of hotel management business with Unrelated Persons that is necessary to qualify as an “eligible independent contractor” with the meaning of such Code Sectionsection. (b) A “qualified lodging facility” is defined in Section 856(d)(9)(D) of the Code and means a “lodging facility” (defined below), unless wagering activities are conducted at or in connection with such facility by any person who is engaged in the business of accepting xxxxxx and who is legally authorized to engage in such business at or in connection with such facility. A “lodging facility” is a hotel, motel or other establishment more than one-half of the dwelling units in which are used on a transient basis, and includes customary amenities and facilities operated as part of, or associated with, the lodging facility so long as such amenities and facilities are customary for other properties of a comparable size and class owned by other owners unrelated to Condor Hospitality Trust, Inc. (c) Operator shall not sublet any Hotel or enter into any similar arrangement on any basis such that the rental or other amounts to be paid by the sublessee thereunder would be based, in whole or in part, on either (a) the net income or profits derived by the business activities of the sublessee, or (b) any other formula such that any portion of the rent would fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Internal Revenue Code, or any similar or successor provision thereto.

Eligible Independent Contractor. (a) At the effective time of this Agreement, Operator shall qualify as an “"eligible independent contractor” " as defined in Section 856(d)(9) of the Internal Revenue Code of 1986, as amended (the “"Code”"). To that end: (i) during the Operating Term, Operator shall not permit wagering activities to be conducted at or in connection with the HotelsHotel; (ii) during the Operating Term, Operator shall not own, directly or indirectly (within the meaning of Section 856(d)(5) of the Code), more than 35% of the shares of Condor Hospitality Trust, Inc.; (iii) during the Operating Term, no more than 35% of the total combined voting power of Operator’s 's outstanding stock (or 35% of the total shares of all classes of its outstanding stock) shall be owned, directly or indirectly, by one or more persons owning 35% or more of the outstanding stock of Condor Hospitality Trust, Inc.; and (iv) At the effective time, Operator shall be actively engaged in the trade or business of operating “"qualified lodging facilities” " (defined below) for a person who is not a “"related person” " within the meaning of Section 856(d)(9)(F) of the Code with respect to the Parent or Lessee (“"Unrelated Persons”"). In order to meet this requirement, Operator agrees that it (i) shall derive at least 10% of both its revenue and profit from operating “"qualified lodging facilities” " for Unrelated Persons and (ii) shall comply with any regulations or other administrative guidance under Section 856(d)(9) of the Code with respect to the amount of hotel management business with Unrelated Persons that is necessary to qualify as an “"eligible independent contractor” " with the meaning of such Code Section. (b) A “"qualified lodging facility” " is defined in Section 856(d)(9)(D) of the Code and means a “"lodging facility” " (defined below), unless wagering activities are conducted at or in connection with such facility by any person who is engaged in the business of accepting xxxxxx and who is legally authorized to engage in such business at or in connection with such facility. A “"lodging facility” " is a hotel, motel or other establishment more than one-half of the dwelling units in which are used on a transient basis, and includes customary amenities and facilities operated as part of, or associated with, the lodging facility so long as such amenities and facilities are customary for other properties of a comparable size and class owned by other owners unrelated to Condor Hospitality Trust, Inc. (c) Operator shall not sublet any the Hotel or enter into any similar arrangement on any basis such that the rental or other amounts to be paid by the sublessee thereunder would be based, in whole or in part, on either (a) the net income or profits derived by the business activities of the sublessee, or (b) any other formula such that any portion of the rent would fail to qualify as “"rents from real property” " within the meaning of Section 856(d) of the Internal Revenue Code, or any similar or successor provision thereto. Section 21.10. Time of the Essence. Time is of the essence of this Agreement. Section 21.11.

Eligible Independent Contractor. (a) At the effective time of this Agreement, Operator shall qualify as an “eligible independent contractor” as defined in Section 856(d)(9) of the Internal Revenue Code of 1986, as amended (the “Code”). To that end: (i) during the Operating Term, Operator shall not permit wagering activities to be conducted at or in connection with the Hotels; (ii) during the Operating Term, Operator shall not own, directly or indirectly (within the meaning of Section 856(d)(5) of the Code), more than 35% of the shares of Condor Hospitality Trust, Inc.; (iii) during the Operating Term, no more than 35% of the total combined voting power of Operator’s outstanding stock (or 35% of the total shares of all classes of its outstanding stock) shall be owned, directly or indirectly, by one or more persons owning 35% or more of the outstanding stock of Condor Hospitality Trust, Inc.; and (iv) At the effective time, Operator shall be actively engaged in the trade or business of operating “qualified lodging facilities” (defined below) for a person who is not a “related person” within the meaning of Section 856(d)(9)(F) of the Code with respect to the Parent or Lessee (“Unrelated Persons”). In order to meet this requirement, Operator agrees that it (i) shall derive at least 10% of both its revenue and profit from operating “qualified lodging facilities” for Unrelated Persons and (ii) shall comply with any regulations or other administrative guidance under Section 856(d)(9) of the Code with respect to the amount of hotel management business with Unrelated Persons that is necessary to qualify as an “eligible independent contractor” with the meaning of such Code Section. (b) A “qualified lodging facility” is defined in Section 856(d)(9)(D) of the Code and means a “lodging facility” (defined below), unless wagering activities are conducted at or in connection with such facility by any person who is engaged in the business of accepting xxxxxx and who is legally authorized to engage in such business at or in connection with such facility. A “lodging facility” is a hotel, motel or other establishment more than one-half of the dwelling units in which are used on a transient basis, and includes customary amenities and facilities operated as part of, or associated with, the lodging facility so long as such amenities and facilities are customary for other properties of a comparable size and class owned by other owners unrelated to Condor Hospitality Trust, Inc. (c) Operator shall not sublet any Hotel or enter into any similar arrangement on any basis such that the rental or other amounts to be paid by the sublessee thereunder would be based, in whole or in part, on either (a) the net income or profits derived by the business activities of the sublessee, or (b) any other formula such that any portion of the rent would fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Internal Revenue Code, or any similar or successor provision thereto.

Eligible Independent Contractor. (a) At the effective time of this Agreement, Operator Agent shall qualify as an “eligible independent contractor” as defined in Section 856(d)(9) of the Internal Revenue Code of 1986, as amended (the “Code”). To that end: (i) during the Operating Termterm of this Agreement, Operator Agent shall not permit wagering activities to be conducted at or in connection with the Hotels; (ii) during the Operating Termterm of this Agreement, Operator Agent shall not own, directly or indirectly (within the meaning of Section 856(d)(5) of the Code), more than 35% of the shares of Condor Supertel Hospitality Trust, Inc.Inc. (“Parent”); (iii) during the Operating Termterm of this Agreement, no more than 35% of the total combined voting power of OperatorAgent’s outstanding stock (or 35% of the total shares of all classes of its outstanding stock) shall be owned, directly or indirectly, by one or more persons owning 35% or more of the outstanding stock of Condor Hospitality Trust, Inc.Parent; and (iv) At the effective time, Operator Agent shall be actively engaged in the trade or business of operating “qualified lodging facilities” (defined below) for a person who is not a “related person” within the meaning of Section 856(d)(9)(F) of the Code with respect to the Parent or Lessee Owner (“Unrelated Persons”). In order to meet this requirement, Operator Agent agrees that it (i) shall derive at least 10% of both its revenue and profit from operating “qualified lodging facilities” for Unrelated Persons and (ii) shall comply with any regulations or other administrative guidance under Section 856(d)(9) of the Code with respect to the amount of hotel management business with Unrelated Persons that is necessary to qualify as an “eligible independent contractor” with the meaning of such Code Section. (b) A “qualified lodging facility” is defined in Section 856(d)(9)(D) of the Code and means a “lodging facility” (defined below), unless wagering activities are conducted at or in connection with such facility by any person who is engaged in the business of accepting xxxxxx and who is legally authorized to engage in such business at or in connection with such facility. A “lodging facility” is a hotel, motel or other establishment more than one-half of the dwelling units in which are used on a transient basis, and includes customary amenities and facilities operated as part of, or associated with, the lodging facility so long as such amenities and facilities are customary for other properties of a comparable size and class owned by other owners unrelated to Condor Hospitality Trust, Inc.Parent. (c) Operator Agent shall not sublet any Hotel or enter into any similar arrangement on any basis such that the rental or other amounts to be paid by the sublessee thereunder would be based, in whole or in part, on either (a) the net income or profits derived by the business activities of the sublessee, or (b) any other formula such that any portion of the rent would fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Internal Revenue Code, or any similar or successor provision thereto.